HUSAIN v. SHAH

Filing 32

Memorandum Opinion and Order: Defendants' partial motion to dismiss 23 is GRANTED. Plaintiff's motion for summary judgment 28 is DENIED. See attached document for detail. Signed by Judge Randolph D. Moss on 8/19/2016. (lcrdm3, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MUSARRAT ROOHI HUSAIN,
Plaintiff,
v.
Civil Action No. 15-708 (RDM)

GAYLE E. SMITH, 1
Administrator, United States Agency for
International Development,
et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
This is action against the United States Agency for International Development
(“USAID”) and the United States brought by a former USAID employee, Musarrat Roohi
Husain. During her tenure at USAID, Husain filed six administrative complaints against the
agency alleging unlawful discrimination, Dkt. 14 at 20–30 (Am. Compl. ¶¶ 46–80), and two
related claims against the United States under the Federal Torts Claims Act (“FTCA”), id. at
30–34 (¶¶ 81–99). These administrative complaints alleged various forms of workplace
discrimination and other mistreatment under a host of federal and local statutes. Husain
subsequently filed this action, asserting twenty-four claims against USAID and the United States,
including, among other things, claims for violations of the Fifth and Fourteenth Amendments of
the U.S. Constitution, Title VII of the Civil Rights Act of 1964 (“Title VII”), the Rehabilitation

1

Rajiv Shah, the defendant named in Husain’s original complaint, is no longer the Acting
Administrator of USAID. Gayle E. Smith, USAID’s current Administrator, is accordingly
substituted as the defendant. See Fed. R. Civ. P. 25(d).
1

Act, the District of Columbia Whistleblower Protection Act (“DCWPA”), the federal
Whistleblower Protection Act (“WPA”), and the FTCA. See id. at 37–49 (¶¶ 106–37). USAID
and the United States have now moved to dismiss many—but not all—of those claims, Dkt. 23,
and Husain has cross-moved for summary judgment, Dkt. 28. For the reasons discussed below,
the defendants’ partial motion to dismiss is GRANTED, and Husain’s cross-motion for summary
judgment is DENIED.
I.

BACKGROUND

When, as here, a plaintiff is proceeding pro se, her complaint must “be liberally
construed” and held to “less stringent standards than formal pleadings drafted by lawyers.”
Estelle v. Gamble, 429 U.S. 97, 106 (1976). To this end, courts will often consider all of a pro se
plaintiff’s filings—and not merely her complaint—in evaluating a motion to dismiss. See Brown
v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015). There are limits to this
forbearance, however, and even when a plaintiff is proceeding pro se, a district court is not
“obliged to sift through hundreds of pages . . . to make [its] own analysis and determination of
what may[ ] or may not” support the plaintiff’s claims. Twist v. Meese, 854 F.2d 1421, 1425
(D.C. Cir. 1988). This is such a case. Husain has filed more than 500 pages of attachments. See
Dkts. 2–8. The complaint often refers generally to “the exhibits,” see, e.g., Dkt. 14 at 4, 24, 29
(Am. Compl. ¶¶ 9, 59, 78), without specifying where in the lengthy series of exhibits the
supporting documents can be found. As a result, where the Court can reasonably discern the
nature of Husain’s claims, the Court will address the legal sufficiency of those claims. But,
where it can only speculate as to what Husain intends to allege, the Court will not, in effect,
“assume the role of advocate” and fill in the gaps left in Husain’s complaint. Miller v. Kemp,
No. 11-cv-0530, 2012 WL 1592537, at *3 (N.D. Okla. May 4, 2012).

2

The substance of Husain’s claims in this action is perhaps discerned best by looking to
the eight administrative complaints that she unsuccessfully pursued before USAID, which form
the gravamen of her current claims. They are as follows:
(1)

Husain filed an Equal Employment Opportunity (“EEO”) complaint with

USAID’s Office of Civil Rights and Diversity on May 16, 2013, alleging that the agency had
violated the Health Insurance Portability and Accountability Act (“HIPAA”) and the Privacy
Act. Dkt. 14 at 21 (Am. Compl. ¶ 48). This complaint asserted that an agency director
unlawfully shared “confidential medical information” with other USAID employees. Id. (¶ 47);
see also Dkt. 3 at 63–65. Five days after filing this complaint, Husain was suspended for three
days. Dkt. 14 at 21 (Am. Compl. ¶ 49).
(2)

Husain filed a “Reasonable Accommodation” request on May 14, 2014, to compel

USAID to accommodate her medical conditions, particularly her alleged brain surgery, along
with her extreme stress and her need to take certain medication. Id. at 5–6 (¶¶ 11–16); see also
Dkt. 5 at 60–67. The agency allegedly failed to respond. Dkt. 14 at 22 (Am. Compl. ¶ 52). In
an EEO complaint filed June 7, 2014, Husain maintained that the agency had failed to move her
out of a “very unsafe, threatening, hostile work environment.” Id. (¶¶ 52–54).
(3)

USAID issued Husain a “Notice of Proposed Termination” on July 8, 2014, for

“Failure to Carry out Assignments,” “Failure to Maintain a Regular Work Schedule,” and
“Insubordination.” Id. at 23 (¶ 55); see also Dkt. 4 at 48. After receiving this “Notice of
Proposed Termination” and an administrative suspension, Husain filed her third EEO complaint
on July 10, 2014, asserting that USAID issued the termination letter in retaliation for her prior
protected EEO activity. Dkt. 14 at 24 (Am. Compl. ¶ 59).

3

(4)

Husain sent an email on August 12, 2014, challenging her termination on the

ground that it was “based on false accusations, pretexts and retaliation because of her prior EEO
activity,” id. at 23 (¶ 56), but USAID never responded, id. (¶ 57). She then filed her fourth EEO
complaint on August 14, 2014, arguing that the USAID retaliated against her for her earlier EEO
filings. Id. at 24 (¶ 60). USAID issued its final decision to terminate Husain on September 4,
2014, and Husain received a letter describing this termination a week later. Id. (¶¶ 61–62).
Husain alleges in this action that she was denied due process because USAID did not conduct an
investigation into her termination, and because she was denied a fair opportunity to defend
herself before the termination decision was made. Id. at 25 (¶¶ 63–64). USAID, however,
withdrew Husain’s termination on October 17, 2014. See Dkt. 5 at 23. It then reissued a notice
of final removal in a letter dated November 25, 2014, with an effective date of January 11, 2015.
Dkt. 14 at 28 (Am. Compl. ¶¶ 73–74); see also Dkt. 23 at 4 (Defs.’ Mem. at 2).
(5)

After the USAID terminated her, Husain filed a fifth EEO complaint on or around

February 3, 2015, see Dkt. 14 at 26 (Am. Compl. ¶ 67), claiming that the USAID discriminated
and retaliated against her on the basis of her “prior EEO activities, race, color, national origin,
and religion” when it failed to provide her with personnel documents necessary for her
application for unemployment benefits, id. at 25–26 (¶¶ 65–71). The crux of this claim was that
USAID’s refusal to provide her with her personnel file was intended to punish her for past EEO
activity. Id. at 27 (¶ 69).
(6)

Husain’s sixth and final EEO complaint, filed on February 4 or 5, 2015, claimed

that the USAID wrongfully reissued its termination on November 25, 2014, in a discriminatory
fashion, violating her “fundamental constitutional right[] to due process.” Id. at 28–29 (¶¶ 75,
77).

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(7)

Husain filed her first FTCA claim with the USAID’s Office of General Counsel

on June 10, 2014, alleging that her termination was the result of the USAID’s “negligence,
wrongful act[s], omissions, violation[s] of mandatory laws, unlawful retaliation, discrimination
and harassment.” Id. at 30–31 (¶ 84); see also Dkt. 23 at 18–19 (Defs.’ Mot. to Dismiss Ex. A).
(8)

Husain filed her second FTCA claim with USAID’s Office of General Counsel on

September 30, 2014. Dkt. 14 at 33 (¶ 94). This claim alleged widespread negligence by the
USAID against Husain, specifically in its failure to undertake any investigation into her prior
EEO complaints. Id. at 34 (¶¶ 97–98).
Husain did not receive administrative relief with respect to these complaints, and she
subsequently brought suit before this Court. Her amended complaint includes twenty-four
counts. See Dkt. 14. The USAID has moved to dismiss all but five of these counts. See Dkt. 23.
II.

STANDARD OF REVIEW

A motion to dismiss under Rule 12(b)(1) challenges the Court’s jurisdiction to consider a
claim. Fed. R. Civ. P. 12(b)(1). The plaintiff bears the burden of establishing that the court has
subject-matter jurisdiction over each claim asserted. Thompson v. Capitol Police Bd., 120 F.
Supp. 2d 78, 81 (D.D.C. 2000). The Court “must accept as true all the factual allegations in the
complaint,” Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S.
163, 164 (1993), and must accord the movant “the benefit of all inferences that can be derived
from the facts alleged,” Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004). A 12(b)(1)
motion may take one of two forms. First, the motion may challenge the adequacy of the
jurisdictional averments of the complaint; if the complaint “fails facially to plead facts sufficient
to establish” subject-matter jurisdiction, the Court must dismiss the complaint. Achagzai v.
Broad. Bd. of Governors, No. 14-cv-768, 2016 WL 1089214, at *4 (D.D.C. Mar. 8, 2016).

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Second, the motion may rely on facts beyond those alleged in the complaint, and, where those
facts are in dispute, the Court may resolve those factual questions necessary to determine its
jurisdiction. See Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).
A Rule 12(b)(6) motion follows a single procedure. To withstand a 12(b)(6) motion, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). The Court need not,
however, “accept inferences” that “are unsupported by the facts set out in the complaint[,] [n]or
must the court accept legal conclusions cast in the form of factual allegations.” Kowal v. MCI
Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Thus, a movant may prevail on a
12(b)(6) motion only by “demonstrating that the facts alleged in the complaint, and accepted as
true for purposes of resolving the motion, do not warrant relief.” Achagzai, 2016 WL 1089214,
at *4 (citing Harris v. Ladner, 127 F.3d 1121, 1123 (D.C. Cir. 1997)). Although district courts
do not hold pro se litigants to the same pleading standards that apply to represented parties,
“[e]ven under a liberal pro se standard, dismissal is appropriate where the plaintiff’s complaint
provides no factual or legal basis for the requested relief.” Strunk v. Obama, 880 F. Supp. 2d 1,
3 (D.D.C. 2011).

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III.

DISCUSSION

Husain’s amended complaint includes twenty-four counts. 2 Count 1 alleges a violation
of due process under the Fifth and Fourteenth Amendments. Dkt. 14 at 37 (Am. Compl. ¶ 106).
Counts 2 and 3 allege violations of Title VII and 42 U.S.C. § 1983. Id. at 37–38 (¶¶ 107–09).
Count 4 alleges that the USAID engaged in a “conspiracy” to prevent Husain from receiving a
fair hearing and appropriate remedies. Id. at 39 (¶ 110). Counts 5, 6, 7, 8, and 11 allege various
types of workplace discrimination or retaliation under Title VII. Id. at 39–41, 42 (¶¶ 111–15,
118). Counts 9, 12, 13, 14, 15, and 16 allege common law tort claims. Id. at 41–44 (¶¶ 116,
119–26). Counts 17 and 18 allege violations of the DCWPA and the WPA. Id. at 45–46
(¶¶ 127–29). Counts 10 and 19 allege violations of the Rehabilitation Act. Id. at 41, 46 (¶¶ 117,
130). Count 20 alleges a violation of the District of Columbia’s Human Rights Act. Id. at 47
(¶ 131). Count 21 alleges a violation of the FTCA. Id. at 47 (¶ 132). Counts 22 and 23 allege
constitutional claims against the USAID under the First Amendment and against its employees
under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). Id. at 48–49 (¶¶ 135–36). Finally, Count 24 alleges a violation of HIPAA and the
Privacy Act. Id. at 49 (¶ 137). The USAID has moved to dismiss all Counts except Counts 5, 6,
7, 8, 11, 19, and 20, which allege claims under Title VII and the Rehabilitation Act. See Dkt. 23
at 15 (Defs.’ Proposed Order).

2

The first twelve counts of the complete are numbered sequentially. The remaining twelve,
however, start at “Count 9” and repeat numbers 9–12. To avoid confusion, the Court will
renumber the final twelve counts as Counts 13–24.
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A.

Husain’s Duplicative or Improper Discrimination, Retaliation, and Disabilities
Claims (Counts 2, 3, 4, 9, 10, 12 and 21)
Title VII provides the exclusive judicial remedy for federal employees who allege that

they are victims of workplace discrimination based on their race, color, religion, sex, or national
origin, see Brown v. Gen. Servs. Admin., 425 U.S. 820, 835 (1976), and the Rehabilitation Act
provides the exclusive judicial remedy for federal employees who allege that they are victims of
workplace discrimination based on disabilities, see Richardson v. Yellen, No. 14-cv-1673, 2016
WL 890570, at *9 (D.D.C. Mar. 8, 2016) (“It is well known that ‘the Rehabilitation Act is the
exclusive remedy for federal employees alleging disability discrimination.’” (quoting Welsh v.
Hagler, 83 F. Supp. 3d 212, 222 (D.D.C. 2015)); see also, e.g., Humm v. Crowell, 172 F.3d 48
(6th Cir. 1998); Spence v. Straw, 54 F.3d 196, 202 (3d Cir. 1995); Gomez v. U.S. Postal Serv., 32
Fed. App’x 889, 893 (9th Cir. 2002); cf. Shirey v. Devine, 670 F.2d 1188, 1191 n.7 (D.C. Cir.
1982) (dicta). Defendants do not seek dismissal of Counts 5 (retaliation), 6 (race
discrimination), 7 (national origin discrimination), 8 (disparate treatment), 11 (harassment), or 19
(disability discrimination), all of which allege claims under Title VII or the Rehabilitation Act.
They do, however, seek dismissal of duplicative clams and claims that fail to invoke the
exclusive remedies available to federal employee seeking to recover for allege workplace
discrimination.
The Court agrees that Husain’s duplicative claims and her discrimination claims that rely
on causes of action other than Title VII and the Rehabilitation Act should be dismissed. The
Court will, therefore, dismiss Count 2 as duplicative of Counts 5, 6, 7 and 8. To the extent Count
3 alleges a Title VII claim, it is also dismissed as duplicative, and, to the extent it alleges a claim
under 42 U.S.C. § 1983, that claim is dismissed because § 1983 does not provide a cause of
action for discrimination in the federal workplace. Count 4 alleges that Husain was the victim of
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an “illegal conspiracy,” but relies on only “the facts” alleged “above” in the complaint. To the
extent this claim incorporates Husain’s allegations that she was the victim of workplace
discrimination and was incorrectly denied administrative relief for that discrimination, it is
duplicative of Husain’s Title VII and Rehabilitation Act claims, and, to the extent it is premised
on other alleged misconduct, it lacks sufficient clarity to satisfy the pleading requirements of
Federal Rule of Civil Procedure 8. See, e.g., Iqbal, 556 U.S. at 678 (explaining that Rule 8
demands more than “labels and conclusions” or “naked” factual assertions). Count 9, which
alleges intentional and negligent infliction of emotional distress, suffers from a similar flaw. To
the extent Husain seeks to recover for emotion distress she suffered based on USAID’s allegedly
discriminatory conduct, her exclusive remedies lie in Title VII and the Rehabilitation Act, and, to
the extent she is alleging that she suffered emotional distress based on other misconduct, Count 9
lacks the clarity required by Rule 8.
Count 10 alleges that USAID discriminated against Husain based on her alleged
disability. Although Husain does not expressly invoke the Rehabilitation Act in this claim, that
statute provides the sole remedy for alleged discrimination in the federal workplace based on a
disability, and, so construed, the claim is duplicative of Count 19. Count 12 alleges that Husain
was the “victim of [an] unlawful and continuing pattern[ ] of lies, misrepresentations and
omission of material facts . . . in documents related to her wrongful discharge in retaliation [for]
her EEO complaint.” Dkt. 14 at 42 (Am. Compl. ¶ 119). Again, this claim fails for one of two
reasons. To the extent the claim alleged that Husain was discharged in retaliation for protected
EEO activity, her exclusive remedy lies in Title VII and the retaliation claim (Count 5) which the
defendants have not sought to dismiss, and, to the extent Count 12 is based on other alleged
misconduct, it lacks sufficient clarity under Rule 8. Finally, Count 21 purports to invoke the

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FTCA, but relies on the defendants’ alleged “violation[s] of federal EEO laws, [the]
Rehabilitation Act of 1973,” and a host of unspecified “laws, polic[ies], rules, regulations,
jurisprudence, directives and . . . rights.” Id. at 47 (¶ 132). Thus, to the extent the Court can
discern the basis of this claim, it too seems to turn on Husain’s underlying discrimination claims
and is, as a result, either duplicative or beyond the scope of the exclusive remedies provided by
Congress.
The Court will accordingly dismiss Counts 2, 3, 4, 9, 10, 12 and 21 of the complaint.
B.

Sovereign Immunity (Counts 1, 13, 14, 15, 16, 22, and 23)
The United States enjoys sovereign immunity and thus may be sued only if it has waived

that immunity. FDIC v. Meyer, 510 U.S. 471, 475 (1994). Moreover, although sovereign
immunity does not bar suits for constitutional torts brought against federal officials in their
personal capacities, see Bivens, 403 U.S. at 390–98, it does bar suits against federal officials
sued in their official capacities, see Clark v. Library of Cong., 750 F.2d 89, 103 (D.C. Cir. 1984)
(holding that sovereign immunity “bar[s] suits for money damages against officials in their
official capacity absent a specific waiver by the government”). “Sovereign immunity is
jurisdictional in nature,” so the Court must ask if the United States has consented to suit before
considering a claim against the federal government. Meyer, 510 U.S. at 475; see also United
States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic that the United States may not be
sued without its consent and that the existence of consent is a prerequisite for jurisdiction.”).
Count 16 of the complaint alleges “negligent hiring, negligent supervision [and] negligent
retention” under D.C. law and federal laws. Dkt. 14 at 44–45 (Am. Compl. ¶¶ 124–26). The
Court will assume that Husain intends to bring this claim under the FTCA because it asserts a
right to recover from a federal agency for various common law torts. In particular, Count 16

10

alleges that USAID “failed to provide appropriate and effective management” and that USAID
management lacked the “skills, training, experience and competence” necessary to comply with
“federal and District of Columbia laws . . . against discrimination, retaliation and other principles
of management.” Id. (¶¶ 124–25). To the extent this claim seeks to recover for alleged acts of
discrimination, it fails for the reasons discussed above. But, to the extent it seeks to recover for
inadequate training and supervision, it fails for another reason: the FTCA’s waiver of sovereign
immunity does not apply to “an act or omission” of a federal employee “based upon
the . . . performance or the failure to exercise or perform a discretionary function or duty on the
part of a federal agency or an employee of the Government, whether or not the discretion
involved be abused.” 28 U.S.C. § 2680(a). More specifically, the D.C. Circuit has recognized
that “decisions concerning the hiring, training, and supervising of [a sovereign entity’s]
employees” constitute “discretionary” governmental functions. Beebe v. Wash. Metro. Area
Transit Auth., 129 F.3d 1283, 1287 (D.C. Cir. 1997); see also Gustave-Schmidt v. Chao, 226 F.
Supp. 2d 191, 197 (D.D.C. 2002). As a result, the United States has not waived its immunity for
claims, like those asserted in Count 16, alleging negligent hiring, supervision, or retention.
Count 13 alleges misrepresentation and fraud, Count 14 alleges intentional interference
with economic relations, and Count 15 asserts a claim for defamation. Dkt. 14 at 42–44 (¶¶ 119–
23). The Court will again assume that these common law tort claims are brought under the
FTCA. Under the “intentional torts” exception to the FTCA, however, a plaintiff may not sue
the United States for claims that “aris[e] out of . . . libel, slander, misrepresentation, [or] deceit,
or interference with contract rights.” 28 U.S.C. § 2680(h); see also Gardner v. United States,
213 F.3d 735, 737 n.1 (D.C. Cir. 2000) (“[S]uits for label or slander are prohibited under the

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[FTCA].”). Because Counts 13, 14, and 15 all fall within the “intentional torts” exception to the
FTCA, the Court will also dismiss those claims.
Counts 1 and 22 allege violations of the First, Fifth, and Fourteenth Amendments to the
Constitution. Dkt. 14 at 37, 48 (Am. Compl. ¶¶ 106, 135). Count 23 asserts a constitutional
claim under the FTCA against the United States and under Bivens against unnamed individuals,
but it fails to specify which individuals allegedly violated Husain’s constitutional rights. Id. at
49 (¶ 136). The Supreme Court has held that a “constitutional tort claim is not ‘cognizable’”
under the FTCA. Meyer, 510 U.S. at 475–79; see also Clark, 750 F.2d at 102–04 (holding
sovereign immunity bars plaintiff’s monetary claims for allegations of constitutional torts).
Thus, to the extent Counts 1, 22 and 23 arise under the FTCA, they are, accordingly, dismissed.
To the extent Husain seeks to bring any of these claims against any individuals under Bivens, she
has a separate problem: “Bivens remedies do not exist against officials sued in their official
capacities,” Kim v. United States, 632 F.3d 713, 715 (D.C. Cir. 2011) (emphasis added), but
against only “federal officers in their individual capacity,” Simpkins v. District of Columbia
Gov’t, 108 F.3d 366, 368 (D.C. Cir. 1997) (emphasis added). To state an individual capacity
claim a plaintiff “must . . . allege that the defendant federal official was personally involved in
the illegal conduct.” Simpkins, 108 F.3d at 369 (emphasis added). Here, Husain has sued only
the Administrator of USAID and the United States, and she has not identified a single act that
could allow the Court to infer that the Administrator personally violated any of her constitutional
rights. The only references in the complaint to Rajiv Shah, the former USAID Administrator, are
allegations that he “act[ed] illegally and negligently in the scope of [his] federal employment,”
Dkt. 14 at 31 (Am. Compl. ¶ 85), and that he was generally aware of her complaints. Because
the complaint lacks any allegation that the USAID Administrator played a personal role in the

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actions giving rise to Husain’s claims, the Court must conclude that she has sued the
Administrator only in his official capacity. 3 Accordingly, the Court will also dismiss Counts 1,
22, and 23 of the complaint.
C.

Federal and Local Whistleblower Protection Act (Counts 17 and 18)
USAID moves to dismiss Count 17, a DCWPA claim, on the grounds that Husain was

not an “employee” within the meaning of the D.C. Code. Dkt. 23 at 12 (Defs.’ Mem. at 10).
The DCWPA provides that “[a] supervisor shall not . . . retaliate against an employee because of
the employee’s protected disclosure.” D.C. Code § 1-615.53(a). The D.C. Code defines
“employee” as “any person who is a former or current District employee, or an applicant for
employment by the District government.” Id. § 1-615.52(a)(3). Husain worked for the USAID,
a federal agency, at all times relevant to the complaint, and she has not alleged that she ever
worked for the District of Columbia. Because the complaint does not allege that Husain was
ever an employee of the District of Columbia, the DCWPA is inapplicable. The Court will,
therefore, also dismiss Count 17.
Count 18 alleges a violation of the federal WPA. Dkt. 14 at 46 (Am. Compl. ¶¶ 128–29);
see 5 U.S.C. § 2302(b)(8). USAID moves to dismiss this count, arguing that Husain failed to
exhaust her administrative remedies because she failed to raise her claim before the United States
Office of Special Counsel. Dkt. 23 at 11–12 (Defs.’ Mem. at 9–10). The federal WPA protects
most federal agency employees “against agency reprisals for whistleblowing activity.” Stella v.

3

If Husain intended to sue Administrator Shah in his personal capacity, she has not alleged facts
sufficient to support a Bivens claim because she has not alleged any conduct by Shah that could
allow the Court plausibly to infer that Shah violated Husain’s constitutional rights. The Court
would therefore dismiss these counts under Rule 12(b)(6). See Iqbal, 556 U.S. at 678; Twombly,
550 U.S. at 570.
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Mineta, 284 F.3d 135, 142 (D.C. Cir. 2002). An employee seeking recovery for an alleged
unlawful reprisal under the federal WPA must first bring her claim to the Office of Special
Counsel. 5 U.S.C. § 1214. If the Special Counsel finds through an investigation that a
prohibited action occurred, it will report its findings to the Merit Systems Protection Board
(“MSPB”). Weber v. United States, 209 F.3d 756, 758 (D.C. Cir. 2000). If the Special Counsel
does not find evidence of any prohibited action, the employee may bring an action before the
MSPB. 5 U.S.C. §§ 1221, 1214(a)(3). The MSPB’s decision is typically appealable to the
Federal Circuit. Id. § 7703. But in a “mixed case,” where the plaintiff alleges both WPA claims
and discrimination claims, she has the choice to bring all her claims either to the MSPB or to the
agency’s EEO office. Butler v. West, 164 F.3d 634, 638 (D.C. Cir. 1999). She may not,
however, skip exhaustion altogether and bring her claims directly to district court. See Hamilton
v. Geithner, 666 F.3d 1344, 1349–51 (D.C. Cir. 2012). Here, there is no indication that Husain
raised her WPA claim with either the Special Counsel or the EEO. The Court will, therefore,
dismiss Count 18 for failure to exhaust administrative remedies.
D.

HIPAA and Privacy Act (Count 24)
Count 24 alleges violations of HIPAA and the Privacy Act, see Dkt. 14 at 49 (Am.

Compl. ¶ 137), which the Court will treat as two separate claims.
Husain alleges USAID’s Human Resources Director violated these statutes when she
“maliciously . . . shared [Husain’s] confidential medical information with several [o]ffices and
individuals within USAID and others.” Id. USAID moves to dismiss Husain’s HIPAA claim on
the ground that only the Secretary of the United States Department of Health and Human
Services, and not a private individual, may bring a HIPAA claim. Dkt. 23 at 12–13 (Defs.’
Mem. at 10–11). The Court agrees. As courts have consistently recognized, HIPPA provides no

14

private right of action. See, e.g., Runkle v. Gonzales, 391 F. Supp. 2d 210, 237 (D.D.C. 2005)
(concluding “there is no private right of action under HIPAA of which the plaintiff can avail
himself”); Hudes v. Aetna Life Ins. Co., 806 F. Supp. 2d 180, 196 (D.D.C. 2011) (“In light of the
statutory language of § 1320d-5 and the apparent consensus among the courts that have
considered the question, this Court finds that Plaintiff has no private HIPAA right of action.”),
aff’d, 493 Fed. App’x 107 (D.C. Cir. 2012); Brown v. Hill, No. 14-cv-0140, 2016 WL 1225773,
at *3 (D.D.C. Mar. 28, 2016). Instead, an individual's “only redress for an alleged HIPPA
violation is to lodge a written complaint with the Secretary of Health and Human Services,
through the Office for Civil Rights.” Brown, 2016 WL 1225773, at *3 (citing 45 C.F.R. §
160.306). Husain, accordingly, has failed to allege a justiciable HIPPA claim.
“The Privacy Act regulates the ‘collection, maintenance, use, and dissemination of
information’” about individuals by federal agencies. Wilson v. Libby, 535 F.3d 697, 707 (D.C.
Cir. 2008) (quoting Doe v. Chao, 540 U.S. 614, 618 (2004)). Section 552a(b) provides that an
agency shall not disclose any record “by any means of communication to any person . . . except
pursuant to a written request by, or with the prior written consent of, the individual to whom the
record pertains.” 5 U.S.C. § 552a(b). A claim for improper disclosure under the Privacy Act
requires the plaintiff prove that “(1) the information in question is a ‘record’ contained within ‘a
system of records;’ (2) the agency improperly ‘disclosed’ the information; (3) an adverse impact
resulted from the disclosure; and (4) the agency’s disclosure was willful or intentional.” Krieger
v. U.S. Dep’t of Justice, 529 F. Supp. 2d 29, 41 (D.D.C. 2008); see also Doe v. U.S. Dep’t of
Treasury, 706 F. Supp. 2d 1, 6 (D.D.C. 2009).
USAID argues that Husain’s Privacy Act claim should be dismissed because she “does
not explain what ‘confidential medical information’ was shared, when it was shared, or with

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whom it was shared, nor does she state that such information was a record entitled to protection
under the Privacy Act.” Dkt. 23 at 13 (Defs.’ Mem. at 11.) Although a complaint need not
contain “detailed factual allegations,” the Court agrees that Count 24 lacks sufficient detail to
give USAID “fair notice of what the . . . claim is and the grounds upon which it rests.”
Twombly, 550 U.S. at 555. Husain has not identified or described the documents that she alleges
were illegally disclosed. Nor has she identified where in her attachments these documents are
located, if they are there at all. It is not the Court’s role to scour a 500-page record to identify
the particular documents that support Husain’s contentions. She has also failed to allege that the
information was part of a record contained within a system of records, that the alleged disclosure
had an adverse impact on her, or that the disclosure was willful or intentional. Husain has thus
failed, by any measure, to allege a claim “that is plausible on its face.” Id. at 570.
Accordingly, the Court will dismiss Count 24 of the complaint.
E.

Summary Judgment
Husain has also moved for summary judgment on all of her claims. See Dkt. 28. For

purposes of summary judgment, the movant bears the burden of presenting evidence that “shows
that there is no genuine dispute as to any material fact,” Fed. R. Civ. P. 56(a), which would allow
“a reasonable jury [to] return a verdict for the nonmoving party,” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Local Rule 7(h) further requires that “[e]ach motion for
summary judgment shall be accompanied by a statement of material facts as to which the moving
party contends there is no genuine issue, which shall include references to the parts of the record
relied on to support the statement.” When a movant fails to provide this statement, the Court is
not obligated to do the legwork for the moving party, even if she is proceeding pro se. See Twist
v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988). Here, Husain’s motion consists of a single

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sentence claiming that she is entitled to summary judgment. See Dkt. 28 at 1. She has not
included a statement of undisputed material facts, nor has she identified any undisputed evidence
demonstrating that she is entitled to prevail as a matter of law. She has thus plainly failed to
carry her burden on summary judgment. The Court will, therefore, deny Husain’s motion for
summary judgment.
CONCLUSION
In conclusion, Counts 2, 3, 4, 9, 10, 12 and 21 are DISMISSED as duplicative or beyond
the scope of the exclusive remedies provided by Congress. Counts 1, 13, 14, 15, 16, 22, and 23
are DISMISSED for want of subject-matter jurisdiction. Counts 17, 18, and 24 are
DISMISSED for failure to state a claim upon which relief can be granted. Defendants have not
moved to dismissed Counts 5, 6, 7, 8, 11, and 19. Those counts therefore remain. Finally,
Husain’s motion for summary judgment is DENIED.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge

Date: August 19, 2016

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